Keeler Bros. v. School Dist. No. 108 , 91 Or. 316 ( 1919 )

BENNETT, J.

1. We do not think the evidence offered by plaintiff shows a sufficient compliance with the contract to entitle the plaintiff to recover under the pleadings. The lithographing of the bonds was a very essential and vital part of the services to be performed by the plaintiff. The plaintiff could not, without any action by the board fixing the denomination of the bonds, proceed to print them in any denomination it saw fit, and after delivering them depend upon that as a compliance with its contract. The bonds, as delivered, were absolutely worthless to the defendant under the conditions of sale, as finally authorized by the board. The plaintiff itself tacitly admitted this by putting in a bid, pot for the bonds prepared by it, but for bonds “due serially 5 to 20 years after date.” (Its own bonds were 10 to 20 years after date.)

Plaintiff should have applied to the board of directors to fix the character and denomination of the bonds and then after the directors refused to do so, it might have brought an action for the breach of its contract. This it did not do and it did not allege in its complaint even that it had offered to alter its bonds, or to reprint them. It stood upon an allegation of a completed contract. We think, therefore, there was no evidence upon which it could recover under the allegations of the complaint.

But besides this, we do not think there was any error against the plaintiff brought up by the record upon which the case should be reversed.

The assignments of error aré as follows:

“The court erred in requiring the plaintiff to prove by county school superintendent records that the directors of the defendant were duly elected and qualified.

“The court erred in permitting improper examination of a witness, Fred Glenn, as to whether or not forms or copies of forms were furnished by an attorney.

“The court erred in permitting improper cross-examination of witness Glenn, as to the printing of ballots, and the expense thereof.

“The court erred in permitting witness Holder to testify that plaintiff agreed to be present personally or by representative at the school election.

“The court erred in permitting the defendant to introduce in evidence a letter stating that plaintiff or its representatives were all present at this special election.

“The court erred in permitting the introduction in evidence by the defendant of a bill for the cost of printing ballots.

“The court erred in permitting testimony of a material change in the written contract in the absence of such defense being pleaded in the answer.

“The court erred in giving Instructions Numbers 6 and 7.”

We doubt if any of these assignments of error are sufficient to present the questions involved, and indeed only three of them are urged or alluded to in the brief and argument for appellant.

2, 3. We think the court should not have permitted the bill to be introduced for the printing' of the ballots, as there was no allegation in the answer that the original contract had been modified in any way, but we do not think it likely the error affected the verdict in any way, especially as the evidence of the printing of the ballots had already been admitted without objection.

The same is true as to the evidence of Glenn not being present at the time of the election, and we think this evidence was virtually taken from the jury by the latter part of the seventh charge.

4. The main rebanee of the appellant, however, is on the sixth charge given by the court, and it is earnestly insisted that this charge was error. The only exceptions thereto were as follows:-

“Mr. Grant: I would bke to except to that portion of your charge where you instructed the jury, as a matter of law, the failure to furnish the proof of posting notices.

‘ ‘ Court: That is, if they failed to furnish a copy of that affidavit.

“Mr. Grant: Yes.

“Court: You will be allowed an exception.”

And a little later:

“To the giving of the instructions 6 and 7, and to the giving of each thereof, the plaintiff at the time excepted.”

It is doubtful if this is a sufficient exception under the rule that where a charge covers more than one proposition, part of which is good and part of which is bad, a general exception is not sufficient, but the particular error must be specifically pointed out: Murray v. Murray, 6 Or. 17; Langford v. Jones, 18 Or. 330 (22 Pac. 1064); Jensen v. Foss, 24 Or. 158 (33 Pac. 535); McAlister v. Long, 33 Or. 368 (54 Pac. 194). However, we think the charge is substantially correct.

It may be that the proof of posting notices by certificate or affidavit was not absolutely essential to the validity of the bonds, still that was a convenient and proper way of showing on the record that the notices had been published. It might have been sufficient to have this appear in the records of the meeting, as was done in Amort v. School Dist., 48 Or. 522, 524 (87 Pac. 761), in which case the court said:

“There is no statute requiring the proof of such posting to be made in any particular manner, and, in our opinion, it is sufficient if it appears from the records of the district and board meetings kept by the clerk that the notice was, in fact, posted as required by law. ’ ’

Here there was no attempt to prove that the proof of service was supplied by the record, or in any other way except, by an affidavit or certificate. The agreement of the plaintiff was that the proceedings should show adequate lawful authority for the issuance of the bonds mentioned. It seems to have been assumed by all of the parties that such a certificate or affidavit on the part of the clerk was the best and most convenient way of making it appear upon the record that the notices had been given. The plaintiff claims that such an affidavit or certificate was actually prepared and delivered by it. The testimony of the defendant is that no such paper was furnished.

5. The school district could not be expected to put its bonds upon the market subject to any doubt or, uncertainty as to any step of their authorization. The plaintiff is an expert in the matter of contracts like this. It prepared the contract itself and in its own language. It deals with the officers of a school district, who are ordinarily inexperienced in such matters. We think it should be held strictly to each provision of its contract, and if there is any vagueness in the contract which it itself, has prepared, that vagueness should be construed against it rather than in its favor.

It is urged that the court should not have instructed specially as to this matter, but we think it was entirely proper for the court to announce to the jury the rule of law in relation thereto. It was about the only matter as to which there was an essential controversy or contradiction in the evidence. The court did not give undue prominence to such a question by informing the jury as to whether or not the certificate or affidavit in question and about which there was a contradiction in the evidence, was material. We think the court was right in instructing the jury:

“That the proof of posting notices of election is a material part of this contract, and it is for you to determine under this evidence whether or not that form was supplied by the plaintiff in this case.”

Affirmed. Rehearing Denied.